R v Forbes

R v Forbes - [2019] NSWDC 851 - NSWDC 2019 case summary — Zoe

[3]

The events of 30 April 2017

Again on the evening of 29 April 2017, Sergeant Thomas requested Senior Constable Meredith to arrest the accused.
At approximately 6.30pm Senior Constable Meredith together with Constable Tockuss attended the accused's home address, however, the accused was not present.
Senior Constable Meredith and Constable Tockuss returned to the address shortly after midnight on 30 April 2017 for the purposes of arresting the accused. Three other police officers from the Police Transport Command unit were also present (Senior Constables Timothy Wade-Ferrell, Adam Summers and Dean Murray).
Senior Constable Meredith approached the front door. He knocked on the door and there was no answer. He then called the accused's mobile phone. Constable Tockuss heard the phone ringing inside the house and heard someone answer it. There was then a telephone conversation between Senior Constable Meredith and the accused. Senior Constable Meredith told the accused he was at his house to place him under arrest for resisting arrest.
The accused then walked downstairs towards the front door. He opened the door slightly. Senior Constable Meredith spoke with the accused and told him he was under arrest. The accused closed the door.
Senior Constable Meredith tried to stop the door from being closed and a panel of glass that was in the doorframe was dislodged and broken.
Constable Tockuss delivered a single burst of OC spray through the panel that was broken. Constable Tockuss then kicked the door twice to force it open.
Constable Tockuss then entered the hallway of the premises and delivered another burst of OC spray. He also told the accused to get on the floor and that he was under arrest. The accused did not get on the ground and continued to yell and scream at police. He was described as being aggressive.
Constable Tockuss and Senior Constable Meredith then took hold of the accused in order to arrest him. They were unable to control the accused because he was thrashing about. Constable Tockuss lost his footing and fell to the floor with the accused. Constable Tockuss took hold of the accused's arm trying to handcuff him. The accused continued to thrash about with his arms and upper body. This caused Constable Tockuss to lose his balance. As he fell his left arm struck an esky with a metal emblem on it causing a wound to his arm from his elbow to the top of his tricept.
As part of the Crown case, the Crown relied upon a video taken from a body worn camera being used by Senior Constable Wade-Ferrell. The video showed part of the incident inside the house.

[5]

General directions

In compliance with s 133 (2) and (3) of the Criminal Procedure Act, I remind myself of the following principles of law.
As the accused has pleaded that he is not guilty to the count on the indictment and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charge and to return my verdict according to the evidence that I have heard.
It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of a witness depends upon two quite different but sometimes overlapping considerations, one is the witness's honesty the other is the witness's accuracy.
The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
I have heard and received final submissions from the Crown and Mr Tuckey. I will consider the submissions that have been made in the addresses and give those submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense.
I acknowledge that I have very important matters to decide in this case, important not only to the accused, but also to the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgement.
As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits, including the statements of numerous witnesses not called to give oral evidence tendered either in the Crown case or defence case.
I note that in relation to accepting the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit accept part and reject part of that witness's evidence.
I remind myself that I may, as judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts is such inference is the only reasonable inference that can properly be drawn from the proven facts if such inference is the only reasonable inference that can properly be drawn from the proven facts.
I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of the most serious nature and the burden of proof of the guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt.
I warn myself that suspicion is not a substitute for proof beyond reasonable doubt. It is and has always been a critical part of our system of justice, that persons tried in this court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt.
Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found not guilty of the charge.
The words, "beyond reasonable doubt" are ordinary every day words and that is how I understand them. If at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after taking into account the submissions made by each of the parties in their addresses, I am not satisfied that the Crown has established any one of the essential matters beyond reasonable doubt, then it is my duty to bring in a verdict of "not guilty" because the Crown will have failed to do what the law requires the Crown to do.
I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt.
It follows from this of course that if I am left unable to decide whether the Crown has proved its case in relation to any essential element even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty.
The accused has given and called evidence in answer to the case led by the Crown in the trial.
If, having considered that evidence and the submissions of both counsel in relation to it, I accept it, then of course I must acquit the accused and bring in a verdict of not guilty, because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter that it must prove.
However, I remind myself that there is no obligation on the accused to persuade me to accept that evidence. The Crown must satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of the facts.
If that evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove, then I am bound in law to bring in a verdict of "not guilty".
In other words, I do not have to believe that the accused is telling me the truth before he is entitled to be acquitted. If at the end of my deliberations I find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade me of the accused's guilt beyond reasonable doubt.

[10]

Acting in the execution of duty

A police officer acts in the execution of his duty so long as all powers are exercised for lawful purposes.
For the purpose of this trial, the relevant statutory provisions conferring powers upon police and requirements in relation to the exercise of those powers are as follows: 1. The power to arrest without warrant - Section 99(1) Law Enforcement Powers and Responsibilities Act 2002 hereafter LEPRA, provides: (1) "A police officer may without warrant arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:- i) to stop the person committing or repeating the offence or committing another offence, ii) to stop the person fleeing from the police officer or from the location of the offence, iii) to enable enquiries to be made to establish the person's identity if it cannot be readily established or if a police officer suspects on reasonable grounds that identity information provided is false, iv) to ensure that the person appears before a court in relation to the offence, v) to obtain property in the possession of the person that is connected with the offence, vi) to preserve evidence of the offence or prevent the fabrication of evidence, vii) to prevent the harassment of or interference with any person who may give evidence in relation to the offence, viii) to protect the safety or welfare of any person (including the person arrested), ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the officer may lawfully arrest the person without a warrant. 2. Police officers to provide information when exercising powers - Section 202 LEPRA provides: (1) "A police officer who exercises a power to which this part applies must provide the following to the person subject to the exercise of the power: a) evidence that the police officer is a police officer (unless the police officer is in uniform), b) the name of the police officer and his or her place of duty, c) The reason for the exercise of the power. (2)'A police officer must comply with this section - (a) as soon as it is reasonable practicable to do so, or (b) in the case of a direction requirement or request to a single person before giving or making the direction, requirement or request." The power to arrest a person is a relevant power to which section 202 LEPRA applies. 3. Use of force in making an arrest - section 231 LEPRA provides: "A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest." 4. Power to enter to arrest - section 10(1) LEPRA provides- "1. A police officer may enter and stay for a reasonable time on premises to arrest a person or detain a person under an act or arrest a person named in a warrant. 2. However the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling."

[13]

The events of Saturday 22 April 2017 involving Karen and Anna Robinson and the accused.

The statements of Karen Robinson and Anna Robinson were tendered in the Crown case. Neither witness gave evidence.
In February 2017, Karen Robinson, (62 years) and her husband had engaged the accused to do some building work at their house at The Entrance. The accused, as the licensed builder, had been project managing the work with other tradesmen.
On Saturday 22 April 2017 the accused arrived at the building site at about 8.30am. He had previously advised the Robinsons that he was attending on that day to talk to the new carpenter about some problems with construction.
Karen Robinson approached the accused whilst the accused was on site talking with the new carpenter. She told the accused, "This sound's serious, what's going on?" The accused replied, "This is outrageous behaviour talking in front of the client". She told the accused there were, "So many problems", and alleged there were breaches of the contract. She asked the accused what he was going to do to fix the problems, the accused said, "That's it, tools down site closed, everyone fucking out this job's cost fucking $50,000".
Karen Robinson described the accused as "going ballistic off the Richter scale, waving his hands around, he had a hammer in his hand and he was swearing and waving the hammer about". She told the accused to leave.
The accused then started removing some materials to put in his truck. She told him, "Leave all the stuff here, I want you to go". The accused replied, "I'm not going to (sic) I get all my material". She said, "They are not all your things". The accused replied, "They are mine Karen".
Karen Robinson stated that when the accused was waving the hammer about in her direction she felt intimidated and threatened by his actions.
At some stage Anna Robinson, (34 years, daughter of Karen Robinson) came outside. She described the accused as very aggressive and slamming the gate and throwing tools.
The accused then approached Karen Robinson and said he wanted to talk to her. She told him she did not want to talk him and he should leave. The accused then left the site.
Later on that day the accused sent the Robinsons an email. The email said something similar to, "I am sorry, you don't have to worry about me anymore as I won't wake up tomorrow".
The contents of the email were distressing and Karen Robinson immediately telephoned The Entrance Police Station. She took the email to Senior Constable Baird. She also rang Lifeline and told them of her concerns.

[15]

The decision to arrest the accused for allegations concerning Karen an Anna Robinson

On 23 April 2017 Sergeant Thomas was on night shift. He gave evidence that he contacted Karen and Anna Robinson.
On 24 April 2017 Sergeant Thomas arranged for statements to be taken from the Robinsons. As a result of obtaining those statements Sergeant Thomas gave evidence that he created a set of facts for the offence of intimidation under the Crimes (Domestic and Personal Violence) Act. His intention was to arrest the accused for intimidation and create bail conditions to protect the victims.
In relation to the reasons why Sergeant Thomas formed the view that the accused needed to be arrested, Sergeant Thomas gave the following evidence: "Q. What were your reasons at that point? A. Well, from what they contained in the statement they'd been intimidated by the accused, he'd been armed with a hammer at the time and for what, a whole lot of circumstances they told me, I formed the opinion that there was grounds for his arrest, he needed to be arrested under s 99 of LEPRA because it was a serious offence, for the protection and welfare of the victims and to stop the accused committing any further offences".
Sergeant Thomas also gave evidence that he was also aware that the accused had sent the Robinsons an email that said words to the effect of "Thanks very much Robinsons I've just been bashed by the police and kept in a cell overnight, all because of you and you going to the police".
Sergeant Thomas regarded the email as relevant because the accused had blamed the Robinsons for police involvement and he wanted to protect their safety.
Sergeant Thomas intended to protect their safety by arresting the accused and having bail conditions to prevent him from contacting the victims or harassing or intimidating them. He said he was aware that the accused had tools and other building supplies at the scene of the alleged offence.
Sergeant Thomas gave the following evidence: "…it was my belief the only option was to arrest the accused and place strict bail conditions on him". In terms of other options that were available to him, Sergeant Thomas said he had considered the option of an application for an apprehended personal violence order, but had dismissed that option in circumstances where he was aware there was no indemnity for costs with respect to an apprehended personal violence order.
Sergeant Thomas explained that he had originally considered that option because: "…that option would have given the victims protection and stopped the offender attending their house and harassing and intimidating them".
Sergeant Thomas explained that he can still apply for apprehended personal violence orders, but police department policy is that they discourage it, because there is no indemnity for costs.
Sergeant Thomas gave evidence that he could have taken out a future service CAN but there is no bail provisions with respect to a future CAN.

[20]

Attempts to arrest to accused

Sergeant Thomas agreed in cross-examination that he had obtained statements from the Robinsons on 24 April 2017. He agreed that he did not go on to arrest the accused or go to his home on that same day. Sergeant Thomas gave evidence that he "didn't have time that day".
Sergeant Thomas agreed that there was no attempt to arrest the accused between 25 and 27 April 2017. He said he was off duty those days. He agreed that he did not attempt to protect the alleged victims between 24 and 27 April 2017.
Sergeant Thomas was asked whether he was aware that the accused had attended Wyong Police Station on 23 April 2017 and complained about the behaviour of Senior Constable Thomas, Senior Constable Jay and Senior Constable Greentree on 22 and 23 April 2017. Sergeant Thomas said he was not aware of that.
Sergeant Thomas was asked whether he was angry with the accused because he was suffering the effects of OC spray that had been deployed on 22 April 2017 and whether that had affected his decision to rely upon arrest instead of a future CAN. He denied that.
He was cross examined about whether he was aware that Senior Constable Mason had spoken to the Robinsons on 22 April 2017 and determined that there was only a civil dispute between the accused and themselves and that no charges would be laid as a result of that. Sergeant Thomas said he was aware of that, and "that was his opinion". Sergeant Thomas said he contacted them as per police policy of victim follow‑up.
Sergeant Thomas was taken to paragraph 6 of his statement dated 29 January 2019 relating to his conversation with Senior Constable Meredith which states: "I informed him that there was a future service CAN H63194320 for the offences of assault police and resist arrest to be served on the accused. I informed him the accused was wanted for intimidation offences as outlined in the event E6425148."
Sergeant Thomas agreed in cross-examination that Senior Constable Meredith was arresting the accused for the intimidation offence only.

[21]

Re-examination of Sergeant Thomas

In re-examination Sergeant Thomas was asked to explain what he meant by "risk assessment". He gave the following evidence: "Yes, in relation to other dealings I had with the accused. A risk assessment is something I do every day of the week, it's in my head, it's whether to use section 99 of LEPRA, whether we have got the power under LEPRA to make an arrest and whether that will be for the victim protection to ensure the person gets to court and with that assessment I take a risk of a person's antecedents and what he's done before that."
Sergeant Thomas explained that whilst conducting the risk assessment he recalled that the accused had been brought into the police station in February 2017 and was charged with intimidation offences, assault offences and malicious damage offences in relation to an attack on a service station attendant at Wyong.
Sergeant Thomas gave the following evidence: "In my mind he was committing offences whilst he was on bail in relation to the earlier incident". I then asked Sergeant Thomas the following questions: "Q. Just so I understand why would that mean that, put aside the question of indemnification for costs, why would that mean that an APVO wouldn't be effective? A. What I believe your Honour that he was already on bail conditions and the bail conditions were not having an effect so he'd be best be brought before the Court to have some other bail conditions imposed upon him. "Q. So just as a practical matter does that mean bail conditions can be more extensive than the conditions of an apprehended personal violence order? A. Yes your Honour."
Sergeant Thomas confirmed in re‑examination that in April 2017 he was aware the accused was on bail conditions and that he was breaching those bail conditions by continuing to offend.
Sergeant Thomas was further cross‑examined in relation to this aspect of his evidence. It was suggested to Sergeant Thomas that he had only become aware that the accused was on bail in April 2017 when preparing the matter for court (he had sent an email to the DPP on 26 May 2019 including the following, "I just saw that Forbes was on bail at the time of the offence on 29 April").
Sergeant Thomas denied that was the position and gave the following evidence: "On 28 April 2017, I knew he was on bail because I had done the bail determination for him".
It was suggested to Sergeant Thomas that nowhere in his police statement dated 22 January 2019 did he indicate that he informed Senior Constable Meredith that the accused was on bail or, that one of the reasons he wanted to arrest him was because he was on bail. Sergeant Thomas gave the following evidence: "As I said before, when I did my risk assessment that was based on my prior history of the accused and, I knew he was on bail for similar offences. But I never outlined that, that was just part of my interpretation of LEPRA, why I thought he should be arrested."

[27]

Description of physical contact between police and the accused

Constable Tockuss gave the following evidence: "I began to move forwards to effect an arrest on Mr Forbes by taking hold of his right arm."
His intention was to handcuff the accused to the rear. Constable Tockuss gave evidence that he was unable to control the accused because; "he was thrashing about, he began to run forward whilst I was holding onto him."
He saw Officer Meredith coming from the other side of the accused and take hold of him from that side. He heard Senior Constable Meredith yell out "stop resisting" a few times. Constable Tockuss described, "As he ran forwards he carried us, when I say "us", myself and Officer Meredith forwards. I lost my footing and I fell to the floor with Mr Forbes."
Constable Tockuss described how he was positioned on the ground as follows: "I was on, above Mr Forbes, he was below me and as I came down I put my knees out and had hold of Mr Forbes' right arm still at that point."
Constable Tockuss said that the accused continued to screech and yell. After they fell to the ground Constable Tockuss tried to take control of the accused for the purpose of handcuffing him, he described his actions in the following way: "I took hold of his right arm and I tried to bring it behind his back, to the small of his back, which is a handcuffing position. Mr Forbes continued to thrash about with his arms and his upper body."
Constable Tockuss described the conduct of the accused immediately before he was injured as follows: "There was one particular movement Mr Forbes performed that made me lose my balance and I slipped forward." "It was the same movement but it was a particularly powerful twist if you like." "So as I turned my left arm struck an esky with an emblem on it and I felt pain starting from the elbow up to the top of my tricep and I landed awkwardly on my buttocks."
Shortly thereafter Constable Tockuss realised his arm had been wounded. He identified two photographs of the injury and a further photograph of the metal item removed from his wound.
Constable Tockuss was asked what his reason was for entering the property. He said "to arrest Mr Forbes for the offence of intimidation".
He continued: "…I understand that if someone's under arrest for an offence, and I can confirm that they're inside the house and they're not cooperating by coming to the door I can force entry to enforce that arrest."
The time he delivered the first OC spray he believed that a violent confrontation was likely to occur in effecting the arrest of the accused.
Constable Tockuss was aware that body camera footage had been recorded. The body camera footage was played during the evidence of Constable Tockuss. It was of five minutes and 44 seconds duration. Constable Tockuss identified himself in the footage.

[29]

Cross-examination of Constable Tockuss

Constable Tockuss agreed in cross‑examination that Senior Constable Meredith was senior in rank to him as at April 2017. He further agreed that Senior Constable Meredith was taking the leading role in arresting the accused and he was acting under the direction of Senior Constable Meredith and was present to provide physical support to Senior Constable Meredith as he performed the arrest of the accused.
In relation to the phone call he had overheard between Senior Constable Meredith and the accused, he was asked if he remember Senior Constable Meredith telling the accused he was under arrest for resisting arrest. Senior Constable Tockuss gave the following evidence "Yes, that's what I recall him saying". "I believe it was from the phone call, yes."
In relation to his understanding of why he was arresting the accused, Constable Tockuss accepted that in his first police statement dated 15 May 2017 he had stated that he had attended the accused's home to arrest him for assaulting police, resisting arrest and intimidation. He accepted that was a mistaken understanding after having reviewed the Event.
At the time of giving evidence on 28 May 2019 Constable Tockuss understood that he was not arresting him for the resist arrest or assault police offences, but had future CANS to serve in circumstances where he had reviewed the Event.
He accepted that when he was at the accused's house he was under the mistaken understanding that he was arresting him for three offences.
Constable Tockuss was cross‑examined about the events at the front door. He gave evidence that he heard the accused yelling the whole time until he came to the front door. He couldn't hear any words, it was incoherent.
In relation to the conversation at the front door Constable Tockuss stated: "I believe I heard him say you're under arrest for resist arrest whilst the door was slightly ajar."
And further: "My recollection was him introducing himself, asking David, Mr Forbes replying yes and then Senior Constable Meredith telling Mr Forbes that he was under arrest for resisting arrest."
Constable Tockuss was taken in cross‑examination to his first statement (at para 11) where he described the conversation at the front door in the following way: "Senior Constable Meredith said 'David,' and the accused replied 'Yes,' and Senior Constable Meredith said, 'You're under arrest.'"
Constable Tockuss was then cross‑examined about the conversation as it is recorded in the mobile phone footage taken by the accused. Constable Tockuss was asked whether the conversation was in the following terms: "Excuse me but what crime am I supposed to have committed?" and then the reply "Resisting arrest mate".
Constable Tockuss said he disagreed that that was the conversation that occurred.
Constable Tockuss agreed he believed he was entitled to enter the property to arrest the person. As he entered the hallway he said, "you're under arrest, get on the floor". He gave evidence that he did not say to the accused he was coming to arrest him before entering the house as he understood he had already been told that he was to be placed under arrest and he should have been compliant.
It was suggested to Constable Tockuss in cross‑examination that he did not call out, "you're under arrest, get on the ground". Constable Tockuss said he certainly called out to get on the ground, you're under arrest.

[30]

Cross-examination in relation to physical contact between police and the accused

Constable Tockuss gave evidence that he did not recall what Senior Constable Meredith was doing when he was on top of the accused, he did not recall Officer Summers grabbing the accused's legs or touching the accused's legs before he fell. He was asked "You don't recall it but do you know if it happened or not?" He replied he did not.
Constable Tockuss was taken to para 15 of his statement where he described the physical contact between himself and the accused in the following way: "I ran forward into the hallway and took hold of Forbes by his right arm and attempted to move this behind his back. Forbes immediately began thrashing around and pulling his arm out of my grip whilst attempting to run forwards. I continued to struggle with Forbes' right arm and noticed Senior Constable Meredith struggling with Forbes' left arm and calling out for him to "stop resisting".
At para 16: "Forbes continued to swing his arms wildly and run forwards and to the right, as a result I lost my footing and myself and Forbes fell to the ground. As I fell my left arm lost its grip on Forbes' arm and my forearm slipped forwards over Forbes' shoulder connecting with the side of the blue coloured Esky."
Constable Tockuss accepted that at the time when he made his statement he believed it happened in one movement. That was before he watched the body cam footage.
It was suggested to Constable Tockuss that the accused had got down on his knees, put his hands behind his back and put his head down on the ground. A photograph showing a person in that position was shown to Constable Tockuss. Constable Tockuss disagreed with that proposition.
It was suggested to Constable Tockuss that once the accused was on the ground, he did not move at all and remained in the position with his hands behind his back for police to handcuff him. Constable Tockuss disagreed with that proposition.
It was further suggested the accused never tried to rise from that position. Constable Tockuss indicated the accused continued to try and throw police off by moving his shoulders.
Constable Tockuss was taken to his second statement (at para 8) where he provided the following description: "As I took hold of Forbes' right arm he continued to struggle and as a result Senior Constable Meredith, who had hold of his left arm, and I fell to the floor. David Forbes was below us at this point and was trying to rise. I knelt on Forbes' back to prevent this and attempted to get my handcuffs out to handcuff him. Forbes continued to thrash his upper body wildly and has thrown me off. After a short struggle Forbes' movement caused me to lose my footing and slide forwards over his shoulder and onto the floor."
Constable Tockuss accepted that he had prepared his second statement after watching the body camera footage. He agreed it was a new recollection. Constable Tockuss was asked whether it was possible that Senior Constable Meredith grabbed the accused and dragged him into a different position. Constable Tockuss stated "I don't recall Senior Constable Meredith dragging the accused at all".
Constable Tockuss did not recall the accused being dragged at all. It was suggested to Constable Tockuss that it was Senior Constable Meredith pulling the accused and dragging him that caused Constable Tockuss to fall off the accused. Constable Tockuss stated "I don't believe so, no" and further, "I disagree that Senior Constable Meredith was pulling the accused".
Constable Tockuss was taken to various portions of the body camera footage. In relation to his understanding at the time he sought to arrest the accused, he was asked: "Q. You also formed the opinion that having been told 'You're under arrest for resist arrest,' that that was sufficient in order to proceed? A. Yes"

[48]

Was Sergeant Thomas acting in the lawful execution of duty?

In order for Constable Tockuss to be acting in the lawful execution of duty at the time he was wounded he must be acting under a lawful direction given by Sergeant Thomas to arrest the accused (section 99 (2) LEPRA).
In order for the direction of Sergeant Thomas to be lawful, it must satisfy the statutory requirements of section 99 (1) LEPRA (power to arrest without warrant).
The Crown submitted that the evidence of Sergeant Thomas established firstly, that he was satisfied on reasonable grounds that an offence of intimidation had been committed and secondly, that he was satisfied it was reasonably necessary to arrest the accused for the reasons identified in section 99 (1), (7) and (9), LEPRA.
In relation to whether it was reasonably necessary to arrest the accused the Crown relied upon the evidence of Sergeant Thomas, that he had conducted a risk assessment before concluding it was necessary to arrest the accused. Specifically, he had remembered that the accused had previously been charged and was on bail at the time of the current alleged offences.
Also, Sergeant Thomas was not only aware of the original incident involving the Robinsons but also that the accused held the Robinsons responsible for his subsequent interaction with police.
The Crown initially submitted, inter alia, that even if the direction of Sergeant Thomas to arrest was found to be unlawful, that would not necessarily result in the conduct of Constable Tockuss being unlawful that is, Constable Tockuss would still be acting in the execution of his duty in complying with that direction.
However, after the Crown had an opportunity to consider Coleman v Power (2004) HCA 39 at [118] to [120] the Crown conceded that in such circumstances the conduct of Constable Tockuss would be unlawful.
It was submitted on behalf of the accused that the Court would not be satisfied beyond reasonable doubt that Sergeant Thomas gave a lawful direction to arrest the accused.
Specifically, it was submitted that there was no evidence that he suspected on reasonable grounds that the accused had committed an offence. Further, the Court would not be satisfied beyond reasonable doubt that the subjective state of mind of Sergeant Thomas was that he considered that it was reasonably necessary to arrest the accused, having regard to the following: 1. The delay of four days between obtaining the police statements from the Robinsons and directing Senior Constable Meredith and/or Senior Constable Tockuss to arrest the accused. It was submitted that this was contrary to any express concern for the welfare of the victims or concern that the accused would commit any further offences and, 2. The availability of an apprehended personal violence order.
It was further submitted that Sergeant Thomas has taken into account an irrelevant consideration, namely, that police were not indemnified for costs if an apprehended personal violence order was sought and failed. It was submitted this rendered the exercise of the power unlawful.

[51]

Consideration of section 99 (1) (b) LEPRA - Was Sergeant Thomas satisfied that the arrest was reasonably necessary for any one or more of the reasons in s 99 (1)(i) to (ix) LEPRA?

Sergeant Thomas gave evidence that the reasons for the arrest were as follows: "It was a serious offence, for the protection and welfare of the victims and to stop the accused committing any further offences."
Specifically, Sergeant Thomas was relying upon section 99 (1) (i),(vii) and (ix) LEPRA.
In relation to Section 99 (1)(b) LEPRA, Basten J in State of New South Wales v Randall observed as follows: "The correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances. Section 99 (1)(b), refers to the officer being satisfied. The precondition to the exercise of the power is the officer's state of mind."
As previously outlined, it was submitted on behalf of the accused that the Court would not be satisfied beyond reasonable doubt that Sergeant Thomas had the requisite state of mind. That is, the Court would not accept his evidence concerning the reasons he gave for being satisfied it was reasonably necessary to arrest the accused.
In relation to each of the reasons that Sergeant Thomas gave for determining that it was reasonably necessary to arrest the accused, I note the following: 1. Was Sergeant Thomas satisfied that the arrest was reasonably necessary to protect the victims and to stop the accused committing further offences? In my view, the evidence of Sergeant Thomas that there was a four day delay between when he decided to arrest the accused and when he directed Senior Constable Meredith and/or Constable Tockuss to arrest the accused, is inconsistent with his evidence that he though the arrest was reasonably necessary to protect the safety and welfare of the victims and to stop the accused committing another offence. Common sense would suggest that more immediate action would have been taken to direct an arrest if such concerns were held. 2. Having regard to that delay, I am not satisfied to the requisite standard that Sergeant Thomas' subjective state of mind at the time was that an arrest was reasonably necessary to protect the safety and welfare of the victims or to stop the accused committing another offence. Accordingly, I am not satisfied that the requirements of section 99 (1) (b) (i) and (viii) are established.

[53]

Was the decision to arrest not a proper exercise of discretion because Sergeant Thomas took into account an irrelevant consideration?

It was submitted on behalf of the accused that by eliminating an apprehended personal violence order as an available alternative to arrest on the grounds that police are not indemnified for costs in relation to such matters, Sergeant Thomas has not properly exercised the discretion conferred by section 99 (1) LEPRA.
I accept that section 99 (1) does confer a discretion on police as to whether to arrest by virtue of the use of the word, "a police officer may". I also accept that the lawfulness of the exercise of the statutory power is not established conclusively by showing that the circumstances in section 99 (1)(a) and (b) existed: see Hyder v Commonwealth of Australia [2012] NSWCA 336 at 1510 and also Zaravinos v State of New South Wales [2004] NSWCA 320 at 28.
Furthermore, I accept that an arrest is not lawful unless a decision to arrest is made in good faith and for the purposes for which the power to arrest exists ( and not for some extraneous purpose).
During the evidence of Sergeant Thomas it was not suggested to him that the decision to arrest was made for the extraneous purpose of avoiding a potential costs order on an apprehended personal violence order.
Further, Sergeant Thomas gave evidence that there were other reasons why he decided not to use an apprehended personal violence order. Namely, as part of his risk assessment he became aware that the accused was currently on bail and still committing offences so he thought it was best that he be brought before the court so that other bail conditions could be imposed.
Also, Sergeant Thomas gave evidence that the bail conditions can be more extensive than conditions of an apprehended personal violence order.
Having regard to the evidence of Sergeant Thomas, I am satisfied he was acting in good faith and not acting for extraneous purposes.
Accordingly, I am satisfied to the requisite standard that the requirements of section 99 (1)(b)(ix) LEPRA are satisfied and it was a proper exercise of the discretionary power. It follows that Sergeant Thomas was lawfully able to give a direction pursuant to section 99 (2) LEPRA to arrest the accused.

[55]

Submissions of the parties

In relation to the conduct of Senior Constable Meredith and Constable Tockuss at the accused's house the Crown submitted as follows: 1. The Crown conceded that the lawfulness of the entry depends upon the lawfulness of the direction to arrest and the sufficiency of reasons provided for entry. 2. The only inference available from the accused words at the front door, namely, "Sorry excuse me what crime am I supposed to have committed?" is that the accused was provided with sufficient information to make him think he was accused of a crime. 3. If there was a deficiency in the information provided to the accused, it was because of the accused's resistance (which is an exception to the requirement that a person must be told the reason for their arrest). 4. The explanation of the accused appears to be not that he was resisting because of what he was told he was being arrested for, or because police came into his home with no explanation, but he stopped complying because he considered the conduct of police unprofessional and impolite. 5. The use of OC spray at the front door was lawful, given it was deployed due to the combative behaviour of the accused and was considered necessary to try and effect the arrest of the accused. 6. Once inside the house the lawfulness of the force applied was reasonable in circumstances where police were trying to effect an arrest.
It was submitted on behalf of the accused that Constable Tockuss was not acting in the execution of duty for the following reasons: 1. He was not acting pursuant to a lawful direction to arrest given by Sergeant Thomas. 2. Section 202 LEPRA requires police officers who exercise the power to arrest to provide the accused the reason for the exercise of the power. It was submitted that Constable Tockuss failed to inform the accused that he was under arrest and the proper reason for the arrest (intimidation). It followed that the subsequent conduct of police was unlawful. 3. Further, Constable Tockuss assaulted the accused by spraying him with OC spray prior to entering the house and at a time when the accused was not under arrest. 4. Police did not comply with LEPRA and the common law in relation to entering the accused's property (and entered as a trespasser). 5. Police assaulted the accused inside the house by spraying the accused with OC spray and restraining him.

[57]

Was Constable Tockuss acting in the execution of his duty at the house? Was the accused arrested?

Having regard to the available evidence, I am satisfied that the following conversations occurred between Senior Constable Meredith and the accused prior to the entry of police into the accused's house. 1. I am satisfied that during the telephone conversation between the accused and Senior Constable Meredith the accused was asked to come to the front door and speak with police in relation to what had happened last time the police had attended his house. Whilst Senior Constable Meredith also gave evidence that he said to the accused during the telephone conversation, "I'm here to place you under arrest after the police were here for resisting arrest on the last occasion, police were here", I am unable to accept the reliability of Senior Constable Meredith's account of this portion of the telephone conversation in circumstances where firstly, the accused denies that anything was said about arrest and secondly, Senior Constable Meredith has been demonstrated to be unreliable, specifically in relation to the subsequent conversation that Senior Constable Meredith allegedly had with the accused at the front door. Whilst Constable Tockuss gave evidence that during the telephone conversation between the accused and Senior Constable Meredith, he heard Senior Constable Meredith tell the accused he was under arrest, I am also unable to accept the reliability of Constable Tockuss' account in circumstances where firstly, Senior Constable Meredith has denied that he placed the accused under arrest during the telephone conversation, secondly, the accused denies that anything was said about arrest, and thirdly Constable Tockuss has also been demonstrated to be unreliable, specifically in relation to the subsequent conversation between Senior Constable Meredith and the accused at the front door. 1. Whilst both Senior Constable Meredith and Constable Tockuss gave evidence that Senior Constable Meredith told the accused at the front door, "You're under arrest", I am not satisfied that conversation occurred having regard to the conversation recorded on the mobile phone footage. I accept that the conversation that occurred at the front door, before police entered the house is as recorded on the mobile phone footage, namely the accused said, "Excuse me but what crime am I supposed to have committed", and Senior Constable Meredith replied, "Resisting arrest mate".
The Crown case at trial was that the accused was told he was under arrest before police entered the house. Having regard to these findings in relation to the nature and extent of the conversation between Senior Constable Meredith and the accused, I am not satisfied that at any stage before police entered the accused's house that the accused was told he was under arrest or the reason for the exercise of the power of arrest.
In Wilson v State of New South Wales (2010) NSWCA 333 Hodgson, JA (with whom McColl JA and Young JA agreed) identified the requirements for an arrest as follows [at 59]: "The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission. As regards (1), if the arrest is to be lawful, this should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest: Christie v Leachinsky [1947] UKHL 2, [1947] AC 573 at 587-593. However, this is not necessary if the circumstances make these things obvious or if the person arrested prevents it: Christie at 587-593, R v Hoar [1965] NSWR 1167, Woodley v Boyd [2001] NSWCA 35 at [38]"
Even if I had been satisfied that the accused had been arrested, I am not satisfied that any such arrest would have been lawful in circumstances where the overwhelming inference having regard to the conversation recorded on the mobile phone footage between Senior Constable Meredith and the accused at the front door, specifically, the reference to resisting arrest, is that any power of arrest that Senior Constable Meredith was purporting to exercise was to effect an arrest for an offence of resist arrest.
The purported exercise of that power was unlawful in circumstances where no direction had been given by Sergeant Thomas pursuant to section 99(2) LEPRA to arrest the accused for the offence of resist arrest. To the extent that Constable Tockuss acted to assist Senior Constable Meredith arrest the accused, he was also acting unlawfully: see Coleman v Power at [118] to [120].
In circumstances where I am not satisfied that Senior Constable Meredith and Constable Tockuss were acting lawfully when purporting to arrest the accused, I am also not satisfied that any subsequent actions taken by them to effect the arrest were lawful. Specifically, I am not satisfied it was lawful to enter the accused's house (section 10 LEPRA) or to use force to effect an arrest (section 231 LEPRA).
It follows that when Constable Tockuss was wounded, I am not satisfied that he was acting in the execution of his duty. Accordingly, I am not satisfied beyond reasonable doubt that the Crown has established count 1 on the indictment.
Accordingly, in relation to count 1, I find the accused not guilty.
Madam Crown, there is the matter of the 166 matters.
SOLICITOR ADVOCATE: Yes your Honour it will flow from your Honour's reasons that your Honour would likely also find the accused not guilty on both of those.
HER HONOUR: Do I have to consider them separately?
SOLICITOR ADVOCATE: Technically yes but they both follow from a point in time that your Honour has determined the officers would be acting outside the execution of their duty.
HER HONOUR: So can I deal with it on this basis, and I do have to find your particularisation, if I can just have the MFI document? I think I marked your particularisation - you can leave the dock Mr Forbes. Did you send the email to my associate?
SOLICITOR ADVOCATE: I did your Honour.
HER HONOUR: I have received it, it is marked as - well it is not marked. I will mark it MFI 16
MFI #16 CROWN'S PARTICULARISATION
HER HONOUR: It is in relation to sequences 8 and 9. Is it sufficient having regard to my reasons, is it sufficient to say that in accordance with my reasons that I find him not guilty of sequence 8 and 9?
SOLICITOR ADVOCATE: Yes your Honour I would imagine so.
HER HONOUR: I note that there are two charges on a s 166 certificate, sequence 8 is an offence of resist officer in the execution of duty relating to Senior Constable Rodney Meredith, sequence 9 is an offence of resisting an officer in the execution of duty relating to Constable Tockuss. The particularisation of those charges is as follows:
Sequence 8: "The accused resisted Senior Constable Rodney Meredith by slamming his front door and simultaneously yelling 'fuck off' while the officer was acting in the execution of duty."
Sequence 9: "The accused resisted Constable Alexander Tockuss by preventing the officer from applying handcuffs to his wrists while the officer was acting in the execution of his duty".
Having regard to the reasons that I have provided in the course of the trial, consistent with those reasons I find the accused not guilty of sequence 8 and not guilty of sequence 9.
Are there any further orders sought?
SOLICITOR ADVOCATE: No your Honour.
TUCKEY: Your Honour I--
HER HONOUR: Is this an outstanding sequence, sequence 10. Sequence 10, "Wound person with intent to prevent arrest".
SOLICITOR ADVOCATE: Your Honour that was the matter that was on the previous indictment and I thought when the new indictment was presented the Crown indicated no further proceedings on that charge, if that isn't clear I can indicate that now.
HER HONOUR: Thank you so I will not there has been no further proceedings on sequence 10. Yes Mr Tuckey?
TUCKEY: Your Honour there's an application for costs in relation to the matter.
HER HONOUR: I will have to stand the matter over for that.
TUCKEY: Yes your Honour.
HER HONOUR: That will require both you and Ms Franklin to have an available date.
TUCKEY: Yes.
HER HONOUR: Can I do this, can I stand the matter over for mention next week so whatever day is suitable, it can be via audio visual link and can each of you arrange a suitable date. I expect it will have to be next year.
TUCKEY: Yes.
HER HONOUR: Because there are only two weeks left in term and I don't have any available time.
TUCKEY: Yes I suppose it is pretty low priority too. So my friend and I can we liaise with your Honour's associate to look at the appropriate days.
HER HONOUR: You certainly can do that. Can I just indicate that the first available time would be after 27 March on a Friday. So any Friday after 27 March. Or there is a short matters week commencing 6 April for the entire week.
TUCKEY: I am free that entire two weeks.
HER HONOUR: Ms Franklin do you know your availability for April next year?
SOLICITOR ADVOCATE: I know I have a circuit in Coffs Harbour at some point in April next year. I unfortunately don't know the dates off hand, but I can liaise with Mr Tuckey in regards to finding a date.
HER HONOUR: Can I stand it over for mention - if I stood it over until Monday.
SOLICITOR ADVOCATE: Your Honour I commence a circuit in Coffs Harbour for the next two weeks, would your Honour allow my instructor to appear at any mention to set a date for the costs?
HER HONOUR: I have no difficulty with anyone else appearing, as long as Mr Tuckey has agreed with the date. Then I will make orders for the service of submissions.
SOLICITOR ADVOCATE: Thank you your Honour.
HER HONOUR: Is there anything further at this stage?
TUCKEY: Your Honour a very minor, if your Honour is publishing reasons there are just two errata of a very minor nature. I can't give your Honour a reference, at one stage your Honour referred to Sergeant Thomas as Senior Constable and there was a date of 2009 that I can't recall.
HER HONOUR: So what I will do, Mr Tuckey is will revise the judgment before it is published and can I just note also one other omission which I will add so when I was dealing with the elements of the offences and I quote s 99 of LEPRA I did not include in my quote 99 (2) and I should have. So the errata will include adding section 99 (2).
SOLICITOR ADVOCATE: Yes your Honour.
TUCKEY: Yes your Honour.
HER HONOUR: Is there anything further.
TUCKEY: No your Honour.
SOLICITOR ADVOCATE: No your Honour.
AUDIO VISUAL LINK CONCLUDED AT 4.47PM DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2020

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